Isaacs v. Macdonald

Sheldon, J. The defendant’s letter of February 15, 1910,x was an acceptance of the plaintiff’s original offer to her. There' is nothing inconsistent with this view in Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391, and 1961 Mass. 72. And though the contract thus concluded was cancelled by the subsequent letters of the parties, yet it seems clear that' their later agreement, except for the description of the machine and the price to be paid, was in all respects upon the same terms' as those which previously had been settled. The final agreement1 then was that the plaintiff should ship to the defendant a sixteen-1 inch Atherton gluing machine and send to her, as soon as she wadi ready to start it, a man to start it and instruct her in its operation1 and care; should let her use it for thirty days; and if it was satisfactory she was to settle for it, and if not, to return it to the plaintiff. If she took it, she was to have the option of paying the'' agreed price, $350, in cash less a small discount, or of paying $125’ or $150 in cash and the rest in monthly notes of $50 each with'interest, the plaintiff holding title to the machine until paid for' in full. This was neither an agreement for a present sale nor a definite ■ [490] agreement for an absolute sale in future. After the plaintiff had done what he was to do, the defendant had the privilege of a thirty days’ trial of the machine, with the option, if it was satisfactory to her, of either making a present purchase of it for cash or of entering into a conditional contract for its purchase, paying for it partly in cash and partly in future instalments and not taking the title until she should have paid the price in full. The provisions of the sales act, St. 1908, c. 237, §§ 17 et seq., relating to the transfer of property as between the seller and the buyer, do not apply to such an agreement, and the rights of the parties must be determined by the stipulations which they chose to make. The thirty days which were allowed for the defendant’s trial of the machine could not begin to run until the man whom the plaintiff was to send had started it and instructed her in its use. The language of the plaintiff’s original offer shows this, both by the order of statement used therein and by the fact that shewas to have thirty days to “use it,” and she could not use it until it had been started and she had received what instruction was necessary. But this never was done. If nothing further appeared, no action could be maintained, for the time allowed for trial would not have begun and of course could not have been ended, and the defendant would have come under no liability. But there was evidence that she had waived the stipulation, as of course she could. The plaintiff in his letter of April 26, enclosing the bill of lading and a bill of parcels for the machine, with a statement of the agreed terms in the alternative, gave to her what could be found to be adequate directions for unpacking, setting up and operating it. She received this without objection and did not ask that a man be sent as had been agreed. The plaintiff wrote to her again on June 16, and on July 6, asking for information and for a settlement, and she made no answer. On July 14 he wrote to her asking for a settlement by return mail. This letter she answered on July 15, making no complaint that a man had not been sent, but saying that she had just had the machine set up, and making a tentative proposal that it should be exchanged for a smaller one. And on August 3, after the plaintiff had rejected the proposal and insisted upon an immediate settlement, she wrote that she could not use the machine and had it packed, ready for instructions from him as to where to ship it. Plainly upon this evidence it could be [491] found that she had waived performance of the requirement which has been stated. If so, it was her duty to set up and start the machine within, a reasonable time after she received it, and the thirty days allowed for trial would begin to run as soon as that reasonable time had expired. She received it early in May. She had told the plaintiff that she wished to use it before June 1. She offered to show that she had in fact no occasion to set it up or use it before July 15. This was a mercantile contract, and it could not have been intended that she should postpone starting and trying the machine indefinitely until she saw fit to do so, whatever may have been the needs of her business. Under the circumstances, and if she had waived performance of the stipulation as to sending a man, as has been stated, it was for the jury to say when a reasonable time after her receipt of the machine expired and when she was bound to begin her trial of it. Keeler v. Jacobs, 87 Wis. 545. This is the provision of the sales act under similar circumstances. St. 1908, c. 237, § 19, Rule 3, (2) (b). Certainly a jury could find that this reasonable time ended and the trial period began on or before June 1, or soon thereafter, and if so, the thirty days had elapsed by July 1 or soon thereafter. If that should be found, her attempt to exercise her option of acceptance or refusal on August 3 was merely void. In that case, independently of the sales act, the jury could have found that by her failure to return the machine at the expiration of the trial period, or within a reasonable time thereafter, she had elected not to return it. See Ray v. Thompson, 12 Cush. 281; Aiken v. Hyde, 99 Mass. 183; Hunt v. Wyman, 100 Mass. 198, 199; Martin v. Adams, 104 Mass. 262; McKinney v. Bradlee, 117 Mass. 321; Springfield Engine Stop Co. v. Sharp, 184 Mass. 266. But the present action is merely upon an account annexed for the price of the machine. This claim cannot be maintained. Taking the most favorable view for the plaintiff and supposing the questions which we have stated to be answered in his favor, yet the defendant’s liability is only for the breach of her agreement to make at the end of the trial period, an election whether to buy the machine in praesenti for $350 or to agree to buy it and pay part of the price in cash and the rest in future instalments not taking title until she should have made full payment. If she had made [492] the election first stated, the present action could be maintained. But she has not done so. If she had chosen the second course, an action now could be maintained for the cash payment and for the monthly instalments which have accrued. But neither has she done. this. The plaintiff, however, if the issues which we have stated are decided in his favor, has the right to maintain an action for the defendant’s breach of her agreement to choose between these two courses and to carry out the choice thus made. Whether he will desire and will be allowed to amend his .declaration accordingly, wé of course do not know. The verdict for the plaintiff ought, not to have been ordered. s The evidence that the plaintiff did not send a man to start the machine and to instruct the defendant in its use should have been admitted. The evidence that it was not adapted to her business and was unsatisfactory should have been admitted, though the jury should be instructed not to consider this evidence if she did not notify the plaintiff of her dissatisfaction and offer to return the machine at the end of the trial period or within a reasonable time thereafter. The other evidence offered by the defendant was rightly excluded. Exceptions sustained.